In a telephone interview with Black Politics On the Web and the Milwaukee Journal about felon disenfranchisement, I explained that “The color of your skin changes how you’re charged, how you’re convicted and in a felony case, how your voting rights are lost.” In the felon disenfranchisement case, I asked the court to dismiss the charges since disenfranchisement was designed to prevent freed slaves from voting. I cited several studies that have concluded blacks are more frequently arrested and incarcerated than whites in Wisconsin and elsewhere. Therefore, the state’s voting ban violates constitutional amendments that guarantee equal protection for minorities and prohibit race-based voting rights.

Likewise, I was also aware that a black Milwaukee driver is seven times as likely to be stopped by city police as a white resident driver. The real problem in racially based stops is that discriminatory behavior on the part of police and elsewhere in the criminal justice system may contribute to blacks’ high representation in arrests, convictions, and prison admissions…Changing America: Indicators of Social and Economic Well-Being by Race and Hispanic Origin(Council of Economic Advisors For the President’s Initiative on Race, September, 1998) 57. “This insidious cycle has served to create an ever-widing gap in the perception of fairness that persons of color and whites have about law enforcement and the criminal justice system…[U]sing profiles that rely on racial or ethnic stereotypes is no better, and in many respects is far worse, than allowing individual officers to rely on inchoate and unparticularized suspicions or hunches.” Interim Report of the State Police Review Team Regarding Allegations of Racial Profiling, (April 20, 1999), p. 70-72.

For that reason, I filed the first racial profiling challenge In Milwaukee County years ago.

Now, finally a court is acknowledging these truths.

Citing disproportionate stops of black men by Boston police, the Massachusetts top court declared that black males may have a legitimate reason to flee from police officers.

"Such an individual, when approached by the police, might just as easily be motivated by the desire to avoid the recurring indignity of being racially profiled as by the desire to hide criminal activity," the Massachusetts Supreme Judicial Court wrote in an opinion made public Tuesday. "Rather, the finding that black males in Boston are disproportionately and repeatedly targeted…suggests a reason for flight totally unrelated to consciousness of guilt."

The decision vacated the conviction of Jimmy Warren, an African-American man convicted of unlawful possession of a firearm in Roxbury in December 2011. Warren, walking with another man near a park, fled from police who were then investigating a reported robbery nearby. He was apprehended, and police soon recovered an unlicensed .22 caliber handgun in a yard nearby that Warren had run through.

As written by Judge Kozinski in the Wall Street Journal:The White House will release a report Tuesday that will fundamentally change the way many criminal trials are conducted. The new study from the President’s Council of Advisors on Science and Technology (PCAST) examines the scientific validity of forensic-evidence techniques—DNA, fingerprint, bitemark, firearm, footwear and hair analysis. It concludes that virtually all of these methods are flawed, some irredeemably so.Americans have long had an abiding faith in science, including forensic science. Popular TV shows like “CSI” and “Forensic Files” stoke this confidence. Yet the PCAST report will likely upend many people’s beliefs, as it should. Why trust a justice system that imprisons and even executes people based on junk science?Only the most basic form of DNA analysis is scientifically reliable, the study indicates. Some forensic methods have significant error rates and others are rank guesswork. “The prospects of developing bitemark analysis into a scientifically valid method” are low, according to the report. In plain terms: Bitemark analysis is about as reliable as astrology. Yet many unfortunates languish in prison based on such bad science.

In the tradition of Jonathan Swift’s 1729 A Modest Proposal for Preventing the Children of Poor People From Being a Burthen to Their Parents or Country, and for Making Them Beneficial to the Publick, I propose police officer’s hence forth be judicially required to determine whether someone should be arrested for drunk driving by determining probable cause by using a ouija board. This instrument has been shown to be reliable since its introduction by the U.S. Patent Office.[1]

It first appeared in the Pittsburg Dispatch, February 1, 1891, Second Part, Page 12. It was touted as the “wonderful talking board.” We know it as the “ouija board.” Described as a magical device that answered questions “about the past, present and future with marvelous accuracy” and promised “never-failing amusement and recreation for all the classes,” a link “between the known and unknown, the material and immaterial.” Another advertisement in a New York newspaper declared it “interesting and mysterious” and testified, “as Proven at Patent Office before it was allowed. Price, $1.50.”

An ouija board[2] (pronounced WEE-jə, and possibly derived from the French and German words for “yes”, oui and ja), is a flat board marked with the letters of the alphabet, the numbers 0-9, the words ‘yes’ ‘no’ and ‘goodbye’, and other symbols and words are sometimes also added to help personalize the board. The ouija board can be used to communicate with spirits of the dead. It uses a planchette (small heart-shaped piece of wood) or movable indicator to indicate the spirit’s message by spelling it out on the board during a séance. The fingers of the séance participants are placed on the planchette, which then moves about the board, supposedly under the invisible guidance of the spirits, to spell out words or in answer to questions presented.

Truth in advertising is hard to come by, especially in products from the 19th century, but we know the ouja board was “interesting and mysterious”; it actually had been “proven” to work at the Patent Office before its patent was allowed to proceed. When the board was brought to the US Patent Office for the first time, the chief patent officer demanded a scientific demonstration—if the board could accurately spell out his name, which was supposed to be unknown to the presenters (never mind one of the presenters was a patent attorney), he’d allow the patent application to proceed. They all sat down, communed with the spirits, and the planchette faithfully spelled out the patent officer’s name. So on February 10, 1891, a white-faced and visibly shaken patent officer awarded a patent for his new “toy or game.”

Just like HGN tests help determine if a police officer has a reasonable suspicion that a person is really driving drunk, law enforcement does not have to be bothered with the scientific principles that underlie the ouija board. No officer would have to testify about the ouija board’s past accuracy or any criticisms. It is important to note that the issue presented is not whether ouja board testing has now reached the level of acceptance in the community. Moreover, the issue presented is not whether ouja board evidence should be admissible at trial to prove guilt or a specific BAC. Rather, the issue before us is whether ouja board evidence can be considered as part of the totality of the circumstances in determining whether a law enforcement officer has reasonable suspicion to believe the person stopped has been operating or attempting to operate a vehicle while under the influence of alcohol or drugs. Accordingly, there is a significant difference between the use of ouja board test results as circumstantial evidence of intoxication in determining reasonable suspicion or probable cause prior to trial and the use of such results to prove guilt or a specific level of intoxication at trial.

I propose that officers who testify about stops for drunk driving undergo extensive training in the operation of a ouija board; that when a ouija board is asked if the driver being tested is DUI, the Board's planchette will point at “yes or “no”; that random sampling has shown that the ouija board correctly identifies when a driver's intoxication exceeds the legal limit 60% of the time; and that the Board's arrow pointed at “yes” when asked if a driver was DUI. After all, we all know that reasonable suspicion is a very low standard and that circumstantial evidence is admissible in a hearing on a motion to suppress, therefore ouija board testimony would be allowed for this limited purpose.

[1] As inspired by HGN admission in City of Wichita v. Molitor, 46 Kan.App.2d 756, 268 P.3d 513 (Ct. App. 2013), reversed 301 Kan. 251, 341 P.3d 1275 (2015) saying that the admission of the HGN test has no more credibility than an ouija board or a magic 8-ball. See also, State v. Sewell, 768 S.E.2d 650 (2015), in which the Court held that the observation of “6 out of 6 clues” on the HGN test, along with the classic “red, glassy eyes” and a positive result on a portable breathalyzer, constituted insufficient evidence to arrest an individual on suspicion of Driving While Impaired; Steven J. Rubenzer and Scott B. Stevenson, Horizontal Gaze Nystagmus: A Review of Vision Science and Application Issues, Journal of Forensic Sciences (March 2010) (reviewing prosecution and defense claims about HGN and concluding that “[w]hile the sobriety testing literature provides circumstantial evidence of HGN’s validity when BAC is used as a criterion, the eye movement literature raises serious questions about its use as a roadside sobriety test”)

[2] For the record, this author is aware the ouija board relies relies on the ideomotor effect, which is the effect that nuanced and even subconscious thoughts have on muscle movement. The concept is that you can never really stop your muscles from moving completely, and that subconscious thoughts can influence subtle movements in said muscles, even when you think that you are remaining still. As in reflexive responses to pain, the body sometimes reacts reflexively to ideas alone without the person consciously deciding to take action.

Photo from Lake Country Now showing the original prediction made on April 6th by me, which correctly predicted the cover news of the April 20th Milwaukee Journal Sentinel and the April 18th edition of the Lake Country Reporter. The prediction was revealed during the Second Anniversary Party of Big Guy's Magic Shop in Pewaukee. - Image credit: Scott Ash

Two weeks in advance of it actually happening, I predicted the Boston Marathon bombing of April 15, 2013.As explained by Jim Stingl in the Milwaukee Journal:

On April 6, 2013 at Big Guy's Magic Shop in Pewaukee, I wrote down what I thought the front page headline would be in the April 20 Milwaukee Journal Sentinel. The folded-up slip of paper was initialed by Waukesha County Executive Dan Vrakas as a reliable witness, and then it was sealed in two Altoids tins, taken by Pewaukee police squad car to a bakery and baked into a cake. That cake was left on display in a store window for two weeks.

On April 23, everyone gathered at the shop again and the two Altoids tins were fished from the cake and opened. Waukesha County Executive Vrakas read aloud my headline prediction:

"Got them. Suspects in custody."

As reported in Lake Country Now, Waukesha County Executive Dan Vrakas (left) reacts as Jimmy 'The Big Bopper' Prince (right) holds up a copy of the April 18th Lake Country Reporter, showing a cover photo that was successfully predicted two weeks prior by Magician Paul Kastle (center). Also pictured is Pewaukee police officer Julie Bonesteel who helped verify the prediction was not tampered with. The prediction was revealed during the Second Anniversary Party of Big Guy's Magic Shop in Pewaukee on Saturday, April 20, 2013. - Image credit: Scott Ash

The actual headline from April 20 was "Got him. 2nd suspect in custody; Boston cheers." Of course, there was only one suspect to get at that point because his brother was already dead. But Kastle was still pretty close. "It's magic, you know," Vrakas said when I called to ask how he thought the trick was done. "Your guess is as good as mine." The prediction was revealed during the Second Anniversary Party of Big Guy's Magic Shop in Pewaukee.

Photo from Lake Country Now showing the original prediction made on April 6th by Magician Paul Kastle, which correctly predicts the cover news of the April 20th Milwaukee Journal Sentinel and the April 18th edition of the Lake Country Reporter. The prediction was revealed during the Second Anniversary Party of Big Guy's Magic Shop in Pewaukee. - Image credit: Scott Ash

This was all done to raise funds for the Pewaukee Food Pantry. It did not escape scrutiny. For instance, a police officer said he should interview me about how knew about the offense in advance. At the time I was also employed as an assistant Wisconsin State Public Defender. After the event, the agency required me to explain in writing to agency management why there was not a conflict between my job as a public defender and the prediction I wrote and had signed by another member of government, Waukesha County Executive Dan Vrakas.

I know the public defender response was, to put it delicately, overboard.

But what about the law enforcement response? Can psychics help police solve crimes? Tabloids regularly have articles about psychic crime busters, who are solving crimes and locating missing persons. Television shows such as Unsolved Mysteries, Sightings and other programs have featured segments on psychic detectives and their amazing and fantastic claims of paranormal abilities. If is true, every police department in the country could lay off at least half of their officers, and replace them with a single psychic. This could have tremendous savings to taxpayers.

Well, it’s not true. Why? Because, to put it indelicately, it’s all bullshit. Thank you Penn and Teller.

When done for purposes of entertainment as was done with Big Guy’s Magic Shop, no harm, no foul. It helped the food pantry. It was part of the magic show.

But unfortunately, some people take the bullshit too seriously, even outside the public defender office. Let me make this clear: there’s not a single case of a missing person who has ever been found due to the advice of psychic detectives– at least not according to the FBI and the National Center for Missing and Exploited Children.

Take the celebrated TV psychic, Sylvia Browne. She has claimed many times to have used her psychic powers to solve crimes, but when one media watchdog group analyzed the 35 cases she spoke about on a series of Montel Williams programs, her success rate was nothing to brag about. In 21 of the cases, the details she gave were too vague even to be verified. Of the remaining 14, either law enforcement or victims’ family members said Browne played no useful role in solving the case. She also claimed on the Larry King Show to have solved the 1993 World Trade Center bombing and said she was working with a man named Stephen Xanthos of the Rumson, New Jersey police department on another crime that she was about to solve. However, a fact check of her story found that no one named Stephen Xanthos ever worked at that police department, although someone by that name had recently been fired from another New Jersey police precinct.

Psychics use such simple tactics to snooker the public it’s almost embarrassing to report. For instance, even to pronounce a missing person to be dead or alive has a 50 percent hit rate. If a psychic predicts that the person is dead, they usually go on to make other “startling predictions” such as the fact that the person is buried in a shallow grave. (How many murderers take the time to dig a deep grave?) Or they’ll predict that this grave can be found in a remote or “wooded area.” (How many killers bury their victims in the middle of the front yard?) Other psychics might say “I see water near the body” or “I see trees”, information which can be easily gleaned from looking at a map of the area.

But what about testimonials from experienced homicide detectives who have actually used psychics? Most reported successes appear to be like the one that a New Jersey police captain attributed to Dorothy Allison. Her predictions "were difficult to verify as initially given," he said. "The accuracy usually could not be verified until the investigation had come to a conclusion." Indeed, this after-the-fact matchingà³known as "retrofitting"à³is the secret behind most alleged psychic successes. For example, the statement, "I see water and the number seven," would be a safe offering in almost any case. After all the facts are in, it will be unusual if there is not some stream, body of water, or other source that cannot somehow be associated with the case. As to the number seven, that can later be associated with a distance, a highway, the number of people in a search party, part of a license plate number, or any countless other possible interpretations.

A 1980 police study concerning the use of psychics by Martin Reiser, director of Behavioral Sciences Services for the Los Angeles police, Susan Saxe, police staff psychologist, and Detective Philip Sartuche, Robbery-Homicide Division stated: "Contrary to some statements, the LAPD has not employed psychics in criminal investigations. The same situation appears to be true for most police departments contacted. In several well-publicized major cases where individuals who claimed psychic powers volunteered information to the department about the crime, the information has not proven useful to the investigation. Similarly, a comprehensive analysis of psychic claims in solving major crimes by C. E. M. Hansel in 'ESP: A Scientific Evaluation,' revealed little correspondence between media reports and later objective documentation."

To find out if psychics could assist the police, American psychologist Dr. Martin Reiser conducted two extensive investigations into the use of psychics by the Los Angeles Police Department for that purpose. After several years of research, his conclusion was that psychics could contribute nothing useful to police work. “Psychics come out of the woodwork during cases which the media become heavily involved in,” he says.Part of Dr. Reiser's experimentation involved weapons used in homicide cases. These were mixed in with “virgin” items as controls, and it was found that the psychics were unable to differentiate among them.Inspector Edward Ellison of the U.K.'s Scotland Yard, in response to statements by psychics that they regularly worked with them, reported that: 1. Scotland Yard never approach psychics for information. 2. There are no official “police psychics” in England. 3. The Yard does not endorse psychics in any way. 4. There is no recorded instance in England of any psychic solving a criminal case or providing evidence or information that led directly to its solution.

Some psychics exaggerate their successes, even claiming positive results in cases that were failures or that never even existed.

Psychics may use ordinary means of obtaining information which they then present as having been psychically obtained. For example, psychics have been accused of impersonating police and even of bribery of police officers in order to gain information. In one instance the psychic, unknown to a detective, had actually been briefed on the case by others. Shrewd psychics can brief themselves by studying newspaper files or area maps, and some make use of the fortune teller’s’ techniques of “cold reading” (a technique in which the psychic fishes for information while watching the listener for reactions that suggest correctness or error).

Another potential explanation for psychics’ apparent successes is faulty recollection of what was actually said. The fallibility of memory is well known, and many stories of psychic success get better as they are told and retold.

Many psychics deal in vague generalities: for example one psychic reported perceiving “the names ‘John’ or ‘Joseph’ or something like that.”

And there are social and psychological factors that may influence people to accept the accuracy of information. Obviously their own belief system will have an effect.

So there you have it. People who claim to really be able to see the future are frauds, charlatans out to make a buck. Fun when it is for your entertaining pleasure. Dangerous when you start to believe the fairy tale. Remember the warning of Voltaire: “Those who can make you believe absurdities, can make you commit atrocities.”

So will any court actually endorse the scientific method for the admission of scientific evidence into court? The President’s Council of Advisors on Science and Technology has concluded that forensic bite-mark evidence is not scientifically valid. BUT additionally the report also criticizes other “pattern matching” forensic fields with varying degrees of severity, including shoe-print matching, firearms analysis, tool-mark analysis and even fingerprint matching (which likely has more evidentiary value than most other pattern-matching disciplines but is often overstated and needs more research to determine accuracy and margin for error). Pattern-matching fields of forensics basically involve a self-proclaimed expert looking at a piece of evidence and declaring by his or her own judgment whether it excludes, is consistent with or “matches” a suspect. It’s highly subjective.

Economists Liana Jacobi of the University of Melbourne and Michelle Sovinsky of the University of Mannheim look at how limited access affects usage rates among Australians of different ages. The Australian data is especially useful because it includes statistics on accessibility and prices. Recreational marijuana is currently illegal in Australia, though some states began introducing medical marijuana laws in 2016. As in America, marijuana is the most commonly used illicit drug in Australia.The authors look at the role accessibility plays in usage and how tax revenues are affected when marijuana is regulated like alcohol and sold to people above the age of 21. They also examine how taxation can curb use among youth. Jacobi and Sovinsky extrapolate their analysis to include the United States, a country with similar cultural behaviors and economies. Findings:

The U.S. could raise between $4 billion and $12 billion annually by taxing legal marijuana. These numbers are based on a tax levy of about 25 percent, which is what the state of Colorado charges. This rate could maximize state revenues without incentivizing the black market.

When people have more access to marijuana (through legal and illegal means) more people use it.

When marijuana is illegal, both access and usage drops as people age. Access is better among the young. Men have better access, and use more, than women. Legalization, therefore, improves access for larger numbers of older people and prompts a larger proportion of older people to begin using.

If marijuana use was legalized and individuals had easy access to the drug, usage rates would rise by approximately 50 percent in the U.S. If that happened, about 19.4 percent of U.S. adults would use marijuana.

To prevent teenagers from increasing consumption after marijuana becomes legal for adult use, the price would have to rise fourfold. That is unfeasible because it would encourage a return of the black market. Instead, a tax of 25 percent would stop roughly one-third (34 percent) of potential new teenage users from starting to use marijuana. To stop 40 percent of potential new teenage users, prices would have to almost double. Prices would have to almost triple to cut the number of new teenage users by half.

It was a line spoken by Captain Louis Renault, the French prefect of police, played by Claude Rains in the 1942 U.S. film Casablanca. The context was a scene in which the Nazi, Major Strasser, is shot by Humphrey Bogart's character, Rick Blaine. Renault was a witness to the shooting but saves Rick's life by telling the investigating police to "round up the usual suspects".

Rather than an example of good police work or prosecution, it is the phrase by which people habitually suspected are arrested in response to a crime. It is a way to find a scapegoat rather than the actual perpetrator of the crime.This is also an example of what the law refers to as propensity evidence. Propensity evidence is evidence that a person engaged in prior bad behavior and is therefore more likely to have engaged in the bad behavior again so to be guilty of the charged offense. Propensity evidence comes in two flavors. Uncharged prior bad acts (uncharged misconduct) and prior convictions. Each presents different problems. I will limit this discussion to uncharged prior bad acts or other acts or uncharged misconduct.

Three centuries ago, there was extremely liberal admissibility of uncharged misconduct evidence during the era of the Star Chamber. Reed, Trial by Propensity: Admission of Other Criminal Acts Evidenced in Federal Criminal Trials, 50 U. Cin. L. Rev 713 716 (1981); Gregg, Other Acts of Sexual Misbehavior and Perversion as Evidence in Prosecutions for Sexual Offenses, 6 Ariz. L. Rev. 212 (1965). The view of letting in all past ill deeds was wholly in accord with the chamber's inquisitorial system.

Almost since Wisconsin became a state, Wisconsin courts have rejected the Star Chamber approach by finding that evidence of uncharged misconduct evidence is inadmissible to establish the defendant’s general character, disposition, or criminal propensity. Fossdahl v. State, 89 Wis. 482, 485 (1895); Boldt v. State, 72 Wis. 7, 15-16 (1888). This rejection of other act evidence in Wisconsin continues today. There is no presumption that other acts evidence is admissible. The presumption under Rule 404(b) is against admissibility. State v. Scheidell, 227 Wis.2d 285, 294, 595 N.W.2d 661, 667(1999), reversing, 220 Wis.2d 753, 584 N.W.2d 897. See also United States v. Simpson, 479 F.3d 492, 497 (7th Cir. 2007). Today, the assumption is other act evidence should be excluded, not admitted, at trial. Scheidell, supra. Wisconsin courts were thus in accord with pre-Revolutionary War colonial courts and English courts. Natali and Stigall, “Are you going to arraign his whole life? How Sexual Propensity Evidence Violates the Due Process Clause;” 28 Loy. U. Chi. L.J. 1, 15 (1996). In Harrison's Trial, 12 How. St. Tr. 834 (Old Bailey 1692), the defendant was on trial for murder. A witness was called to testify about some prior wrongful act of the defendant, but the Lord Chief Justice refused to allow the testimony, stating, "Hold, what are you doing now? Are you going to arraign his whole life? Away, away, that ought not to be; that is nothing to the matter." Id. at 864. A primary reason for this rule is to ensure that the accused is not found guilty merely because a jury might think that he or she is likely to have committed a crime. Regina v. Oddy, 169 Eng. Rep. 499, 502 (Cr.Cas.Res. 1851) ("evidence of the prisoner being a bad man, and likely to commit the offences there charged" is inadmissible). Benjamin Cardozo, writing as Chief Justice of the New York Court of Appeals, framed the issue rather well:

There may be some cogency in the argument that a quarrelsome defendant is more likely to start a quarrel than one of a milder type, a man of dangerous mode of life more likely than a shy recluse. The law is not blind to this, but equally it is not blind to the peril to the innocent if character is accepted as probative of crime. "The natural and inevitable tendency of the tribunal -- whether judge or jury -- is to give excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the present charge, or to take the proof of it as justifying a condemnation irrespective of guilt of the present charge." Wigmore, Evidence vol. 1, § 194, and cases cited. People v. Zackowitz, 172 N.E. 466, 468 (1930).

The United States Supreme Court has recognized at least twice the unanimous tendency of courts that follow the common law tradition to disallow resort by the prosecution to evidence of a defendant's evil character to establish the probability of his guilt and strongly suggests that introduction of prior crimes evidence solely for the purpose of showing a criminal disposition would violate the due process clause. Bell v. Texas, 385 US 554, 572-74(1967)(conc. and diss. op. of Warren, C.J.); Michelson v. United States, 335 U.S. 469, 476 (1948) (“The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice.”); see alsoPanzavecchia v. Wainwright, 658 F2d 337(5th Cir. 1981). The character rule "disallow[s] resort by the prosecution to any kind of evidence of a defendant's evil character to establish a probability of his guilt." Michelson v. United States, 335 U.S. at 475.This principle “is so deeply imbedded in our jurisprudence as to assume almost constitutional proportions and to override doubts of the basic relevancy.” Advisory Committee’s Note to Federal Rule 404. See also, Mulkovich v. State, 73 Wis.2d 464, 471-72, 243 N.W.2d 198(1976)(civilization has recognized the principle that evidence should be confined to the offense charged and bad character should not be proved at trial). Due process is transgressed by a state rule that "offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Medina v. California, 505 US 437, 445-46(1992) The use of "other acts" evidence as character evidence to show that the defendant has criminal propensities, and therefore is by inference likely to have committed the currently charged crimes, has been universally condemned as contrary to firmly established principles of Anglo-American jurisprudence for more than three-hundred years. See e.g.,McKinney v. Rees, 993 F2d 1378, 1380(9th Cir. 1993). This is because "moral conduct in one situation is not highly correlated with moral conduct in another." Campbell v. Greer, 831 F.2d 700, 707 (7th Cir. 1987) (citing Burton, Generality of Honesty Reconsidered, 70 PSYCHOLOGY REV. 481 (1963)). The “danger is particularly great where the extrinsic activity was not the subject of a conviction; the jury may feel that the defendant should be punished for the activity even if he is not guilty of the offense charged." Dowling v. United States, 493 U.S. 342, 361-62 (1990) (Brennan,J., dissenting).

The prohibition against propensity evidence is true even if given the veneer of mathematics by such a term known in the law as “the doctrine of chances.” The origin of the doctrine of chances is the old English "Brides of the Bath," Rex v. Smith, 114 L.T.R. 239 (Crim. App. 1915). In that case, the defendant was accused of drowning several of his wives in the bathtub, a number of whom were wealthy and left the defendant their money. "Oh, what a terrible accident" the defendant probably said when the authorities were investigating the latest drowning. The authorities were prepared to believe the man's lamentations until they learned about the other dead wives. At trial the judge allowed evidence of the other deaths to help prove the current charges. The defendant had a propensity to drown his wealthy wives in the bathtub, perhaps in order to inherit their fortunes.

The essence of this probable guilt argument is that there is a disparity between the chances, or probability, that an innocent person would be charged so many times and the chances, or probability, that a guilty person would be charged so many times. If there is such a disparity, however, it is only because a guilty person would have the propensity to repeat the crime. If it were not for the propensity to repeat, the chances, or the probability, that an innocent person and a guilty person would be charged repeatedly would be identical. Hence, the argument hinges on propensity and runs afoul of the bar to admitting propensity evidence.

Further, left unanswered in the doctrine of chances how unlikely does it have to be that an innocent person would have been charged. Where do we draw the line? When do crimes become numerous and similar enough to the present crime that they cross over from inadmissibility to admissibility? This is the central problem in the "other crimes, wrongs, and acts" area that the doctrine of chances does not address. The doctrine says that the evidence is admissible if it is unlikely that an innocent person would be falsely charged so many times, but how unlikely does it have to be?

The duty of the prosecution is not to show that the defendant is a person inclined to murder, but to prove that he committed this specific murder. The fact that a defendant committed 10 prior murders does not mean that he committed this murder. The duty of the prosecution is not to show that the defendant is a person inclined to murder, but to prove that he committed this specific murder. This is a variation of Captain Renault’s command to “round up the usual suspects.” Once it becomes too easy to assume guilt by prior conduct, it eliminates the expectation that any particular crime be proven. The “usual suspects” become guilty for no better reason than they are the usual suspects. Society is not protected when the wrong person is convicted, and obviously the defendant who is innocent of this specific crime isn’t too thrilled about it either. While it makes for a quick and dirty shortcut to conviction, and one that satisfies the conscience of many a juror, it fails to fulfill the purpose of making certain that the right person is convicted of the specific crime.